K is entitled to a remedy under s. 24(1) of the Charter. The remedy sought by K — an order that Canada request his repatriation — is sufficiently connected to the Charter breach that occurred in 2003 and 2004 because of the continuing effect of this breach into the present and its possible effect on K’s ultimate trial. While the government must have flexibility in deciding how its duties under the royal prerogative over foreign relations are discharged, the executive is not exempt from constitutional scrutiny. Courts have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown exists; if so, whether its exercise infringes the Charter or other constitutional norms; and, where necessary, to give specific direction to the executive branch of the government. Here, the trial judge misdirected himself in ordering the government to request K’s repatriation, in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.

Comments

Just a small “slawish” remark, did other than me noticed the insertion of the URL of video clip at para. 7. I think that this is the first time the Court did this. I guess that the next step will be the inclusion of multimedia content in the body of the reasons for judgment whew appropriate.

It seems very odd that the link is coloured blue AND underlined, but not coded for linking & effectively adding the additional context that was intended. We should ‘double jump’ our historical firsts here and make the link clickable!

Daniel, Steve: it looks like the problem with the link is that it has trapped the trailing comma within it. Can that be simply edited out?

(I’ve noticed that some people have the practice of using no punctuation immediately following a link in text — perhaps for this reason. If punctuation is needed, it comes after a space following the link.)